Both Campaigns Enthusiastically Violate Ban on Super PAC Coordination, Watchdog Says

After years of inaction by the Federal Election Commission, the campaigns of Donald Trump and Hillary Clinton have realized that financing rules can be ignored.

HEMPSTEAD, NY - SEPTEMBER 26:  Democratic presidential nominee Hillary Clinton shakes hands with Republican presidential nominee Donald Trump during the Presidential Debate at Hofstra University on September 26, 2016 in Hempstead, New York.  The first of four debates for the 2016 Election, three Presidential and one Vice Presidential, is moderated by NBC's Lester Holt.  (Photo by Joe Raedle/Getty Images)
Photo: Joe Raedle/Getty Images

In another noble, doomed attempt to encourage the Federal Election Commission to enforce campaign finance law, the Campaign Legal Center filed complaints Thursday against Donald TrumpHillary Clinton, and several Super PACs supporting them for illegal coordination.

The Campaign Legal Center is a nonpartisan Washington, D.C., nonprofit that frequently files such complaints — including one based on The Intercept’s reporting — on which the FEC then generally takes no action.

The FEC’s coma-like state is due to the ferocious opposition of its three Republican members to almost any restriction on money in politics. The FEC has six members, and by law no more than three can be from any one political party, so on many significant votes the commission deadlocks 3-3.

Based on the CLC’s current complaints, it’s difficult to say whether the Trump or Clinton campaign more joyfully violates campaign finance rules.

Several 2010 court decisions, including Citizens United, made it possible for Super PACs to raise and spend unlimited amounts of money supporting candidates for federal office. The Supreme Court determined that this would not “give rise to corruption or the appearance of corruption” so long as Super PACs’ expenditures were truly independent — i.e., not coordinated with candidates’ campaigns.

But after years of inaction by the FEC, campaigns have realized that this restriction can be ignored. And now both the Trump and Clinton campaigns are coordinating with Super PACs in the same way your hands coordinate with your brain.

For its part, the Trump campaign has saved a great deal of money by simply not paying key staff and letting Super PACs pick up the bill instead.

For instance, Kellyanne Conway used to be president of Keep the Promise I, a Super PAC that supported Ted Cruz’s campaign and was largely funded by Robert Mercer, a hedge fund billionaire. It changed its name to Make America Number 1 on June 21 amid reports that it would now concentrate on defeating Clinton.

Soon afterward, on July 1, Trump hired Conway as a senior adviser, and then — reportedly at the urging of Rebekah Mercer, Robert Mercer’s daughter and the chair of Make America Number 1 — made her his campaign manager on August 17.

However, Trump’s filings with the FEC (which to date only show his expenditures up until the end of August) do not list any payments directly to Conway. But Make America Number 1 paid her polling firm $246,987 on August 23. Then on August 30, the Trump campaign paid her polling firm $128,496.

So for at least two months of Conway’s “employment” by the Trump campaign, she hasn’t been on its payroll, and her polling firm has received twice as much money from a Super PAC as from the campaign itself.

The same dynamic may be at work with Steven Bannon, another Mercer intimate who became the Trump campaign’s CEO on August 17 but received no money from it that month — even as businesses with which he’s affiliated received huge checks from Make America Number 1.

Meanwhile, the process worked in reverse with Ken McKay and Laurance Gay, who joined the Trump campaign in the spring and then shortly afterward left and helped form another Super PAC, Rebuilding America Now.

According to federal regulations, campaign staff must wait 120 days after leaving a campaign before working for a Super PAC. That way they can’t take a campaign’s communications plans with them and then duplicate them with unlimited funds.

McKay and Gay’s Super PAC aired its first ads on June 5 — not just less than 120 days after they left the Trump campaign, but actually less than 50 days after they joined the campaign.

McKay and Gay say that they were volunteers for Trump, so the rules don’t apply to them.

If campaign finance regulations allowed this (they don’t), operatives could just “volunteer” for a week, allowing a campaign to brief them in minute detail on its plans, and then walk out the door and start collecting huge paychecks from a Super PAC the next day. This would be the best possible world for politicians, Super PACs, and billionaires: At no cost, the campaigns could cycle through an endless parade of staffers who could then update Super PACs on the campaign’s desires the minute they’d left.

The approach of the pro-Clinton Super PAC Correct the Record has been more sophisticated, though not by much.

Correct the Record has reportedly given Clinton surrogates media training and hired consultants to book their television appearances; deployed trackers to follow Clinton’s primary opponents; conducted opposition research; and much, much more.

The Super PAC has claimed that this is legal due to 2006, pre-Citizens United regulations that permit uncompensated individuals to make statements online that are coordinated with campaigns. At the time, the FEC said the rules were “intended to ensure that political committees properly finance and disclose their internet communications, without impeding individual citizens from using the internet to speak freely regarding candidates and elections.”

In other words, the regulations have next to nothing to do with Correct the Record’s activities.

Nevertheless, both Republicans and Democrats are acting rationally if their primary objective is to win the presidential election rather than follow the law. If its prior actions are any guide, the FEC is unlikely to vote on the Campaign Legal Center’s complaints until long after the election is over; it will then probably deadlock 3-3, taking no action; and if it does take action and issue fines, the penalties will likely be minuscule and easily handled by each party’s biggest, billionaire donors.

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